In this article Ryan Dunleavy, Head of our Media Disputes team, considers the legal impact of the first court case in the western world relating to the anonymity of a transgender man who gave birth to a child and wished to be registered as the father.
The English (Administrative Court and Family Division) judgment this month of R (on the application of TT) v the Registrar General for England and others is the latest family-related decision (consolidated with a judicial review case) illustrating how nuanced and fact-sensitive cases are that potentially engage Article 8 of the European Convention on Human Rights (ECHR) (the right to respect for private and family life, home and correspondence).
Media application to lift anonymity order
During legal proceedings concerning the registration of a child’s birth, the Telegraph Media Group Limited, Associated Newspapers Limited, News Group Newspapers Limited and Reach PLC jointly applied for the lifting of an anonymity order preventing the identification of the claimant. The media organisations said they were willing to retain a bar on naming his child.
How the court decides on anonymity of a party
Open justice is a constitutional principle, but the court can, in certain circumstances, prevent the identification of a party where it is strictly necessary.
When deciding upon whether to require the anonymity of a party, the court balances Article 8 against Article 10 of the ECHR (the right to freedom of expression) as well as the general public interest in open justice.
Facts of this case
In this particular case, McConnell was a transgender man who conceived a child in 2017 via artificial insemination. He had also obtained a gender recognition certificate confirming that his own gender was male.
After the birth of his child, McConnell wished to be registered as the father but the Registrar General for England and Wales decided that McConnell could only be registered as the child’s mother.
He judicially reviewed the Registrar’s decision and sought a declaration that he was the father. Legal proceedings were heard in open court in the presence of the media.
An anonymity order was in place that prohibited either McConnell or his child being identified but during the legal proceedings it transpired that McConnell had assisted for three years with the making of a documentary about his child’s conception and birth. This documentary had already been shown at various international film festivals and was due to be broadcast on BBC television. McConnell was named and featured in the documentary, and details relating to his child’s conception and birth were shown. A photograph of McConnell and an article about him also featured in a national newspaper.
In the circumstances, even though the above media coverage did not refer to McConnell’s claim to be registered as his child’s father, various media organisations applied to have McConnell removed from the anonymity order while allowing it to remain in place with regard to the restriction on directly naming his child.
Father’s position on anonymity
McConnell, and his child, opposed the media organisations’ application on the basis of intrusion rather than breach of confidence, because the documentary and article had already placed the core information in the public domain.
The balancing of Article 8 and Article 10 is highly fact sensitive and requires an intense focus by the court. The court considers the comparative importance of the specific rights being claimed, and the justification for interfering with or restricting each right. It applies a proportionality test to each right.
Decision on father’s anonymity
The court granted the application by the media to lift the anonymity order. It ruled that if McConnell was identified as the claimant there would be some intrusion, but it was unlikely to be of the highest order.
With regard to proportionality, the court said that each step of the process leading to the hearing had been generated solely by McConnell’s own actions. The judgment made clear that this contrasted with most cases on intrusion where confidential information tended to fall into the hands of others, enter the public domain, and then was at risk of further publicity.
In this case, McConnell’s own actions meant that it was public knowledge that he was a transgender man who had given birth, and that there was an “anonymous” claimant pursuing court proceedings in relation to the exact same very rare facts and circumstances who was looking to be legally recognised as the father.
The judgment said: “There is… genuine public interest in the question of law and human rights which lies at the centre of this case. Our society is still in the process of accepting and adapting its institutions and norms to accommodate the transgender status of individuals. As a matter of both fact and law, the circumstances of [McConnell’s] claim are novel. The issue raised in the proceedings has not apparently been determined by any court either in this jurisdiction or elsewhere in the western world.
“The issue has not been directly addressed by Parliament. As the comments from the online commentariat have demonstrated, not all citizens share the same view as [McConnell] on how the law should record his status with respect to his child. This is therefore a case… in which there is a real public interest in publication and, as a result, this should normally extend to the publication of the claimant’s name.”
The child’s privacy
The court said that if the case had only related to McConnell’s identity, it would have taken a firm view that anonymity should be discharged in the circumstances, but that children have independent privacy interests. The judgment said: “[The child] is not to be required to tolerate a situation, which otherwise significantly breaches his right to private life, simply because it has arisen from decisions made by his parent; his own position must be separately considered.”
The child’s Article 8 rights included the right not to have the knowledge of the unconventional nature of his parentage made known publicly, and the right to be free from unwarranted intrusion, particularly intrusion that might compromise McConnell’s ability to care for him.
An issue in this case was that the core information about the child’s parentage had already been made public, at least to the extent that it was likely to be known by all those who knew McConnell. Plus, it was due to be given significantly wider publicity by the television broadcast of the documentary film. The judgment said: “For better or for worse, the prospect of [the child] growing up in circumstances where those who know him do not know that the parent who gave birth to him is a transgender male is now probably remote.”
Key to determining where the balance lay with respect to the child was related to the question of the likely additional harm that the child could suffer if he is identified as the person who was the subject of this judicial review application, over and above any harm that he may experience from it being known that he was a child born to a transgender man.
The court found that the likelihood of immediate and direct harm to the child from publicity and comment arising from publishing material around the court proceedings that identifies McConnell was at that time effectively zero, or low if an appeal process is considered. There was also no evidence that McConnell would fail as a parent in this regard or be unable to continue to care well for his child in a time of stress.
The court ruled that there was potential for direct harm to the child when he is of school age, but the risk of this was not significantly elevated beyond the risk that was already there because of existing and ongoing knowledge about his conception and birth.
As such, the court held that identifying McConnell as the claimant in these proceedings would not engage the child’s Article 8 rights. The court also said that if that position was wrong, and a balance needed to be struck between the child’s Article 8 rights and the media’s Article 10 rights, that balance would favour the media. The judgment said: “Where… the balance is between a child’s Article 8 rights and the media’s rights under Article 10, and where ‘a tangible and objective public interest tends to favour publication the balance may be difficult to strike’ and the interests of a child are not to be treated as a trump card.”
In this case, therefore, the anonymity order was lifted in relation to McConnell, but the child’s anonymity was preserved, at least in terms of directly identifying him.
Lessons from this judgment
The factual background of this case was unusual, but the judgment provides a useful analysis of what the court will take into account when balancing Article 8 against Article 10 when deciding upon whether to apply anonymity to parties involved in legal proceedings, particularly those where there is a family element to them.
Of particular interest is the approach that the court took towards the rights of the child. In many cases, parents attempt to rely upon their child’s privacy rights when trying to obtain anonymity themselves, but this case shows that is not always a position that will be accepted by the court.
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